At the Federal Convention of 1787, now known as the Constitutional Convention, the framers of the United States Constitution established in Article I the structure and powers of Congress. The delegates who gathered in Philadelphia during the summer of 1787, first to revise the existing form of government and then to frame a new Constitution, debated the idea of a Congress made up of two houses. One house would be, in the words of Virginia’s George Mason, the “grand depository of the democratic principle of government.” To counter this popular influence in the national government, James Madison of Virginia proposed another house that would be small, deliberative, and independent from the larger, more democratic house. This became the Senate.
The characteristics of the Senate—the basis of representation, the number of senators per state, the qualifications for office, the terms of service, and the powers that the body exercises—were the product of fierce debate and a number of compromises at the Constitutional Convention. The framers looked to precedents in the British system of government and the state constitutions. The plan for the new government, including the Senate, was developed over the course of the convention by delegates working in committees. A Committee of Eleven (also called the Grand Committee), appointed on July 2, proposed a solution to an impasse over representation in the House and Senate. On August 6 a Committee of Detail produced a draft Constitution that summarized the principles already agreed upon by the Convention. Another Committee of Eleven (sometimes called the Committee on Postponed Parts) was appointed on August 31 to address questions still left unresolved by the Convention. Finally, a Committee on Style and Arrangement proposed the language for the version of the Constitution signed by the delegates on September 17.
The Senate has changed significantly over the course of its history, but its unique role in the federal government remains anchored in the nation’s founding document.
The Senate of the United States shall be composed of two Senators from each State. [U.S. Constitution, Article I, section 3, clause 1]
During the summer of 1787, the delegates to the Constitutional Convention in Philadelphia established equal representation in the Senate and proportional representation in the House of Representatives. Called the “Great Compromise” or the “Connecticut Compromise,” this unique plan for congressional representation resolved the most controversial aspect of the drafting of the Constitution.
The Virginia Plan, drafted by James Madison and introduced to the Convention by Edmund Randolph on May 29, 1787, proposed the creation of a bicameral national legislature, or a legislature consisting of two houses, in which the “rights of suffrage” in both houses would be proportional to the size of the state. When delegates from small states objected to this idea, delegates from the larger states argued that their states contributed more of the nation’s financial and defensive resources than small states and therefore ought to have a greater say in the central government. This proposal also reflected a vision of national government that differed from the government under the Articles of Confederation in which each state had an equal voice. Madison argued that “whatever reason might have existed for the equality . . . when the Union was a federal one among sovereign States, it must cease when a national Government should be put into place.”
Delegates from the smaller states insisted on preserving the equal vote they had enjoyed under the Articles of Confederation. “A confederacy,” New Jersey’s William Paterson stated, “supposes sovereignty in the members composing it & sovereignty supposes equality.”
On June 11 the delegates voted to adopt proportional representation in the House of Representatives based on the “whole number of white & other free Citizens,” and “three fifths of all other persons,” meaning enslaved African Americans. Connecticut’s Roger Sherman, with support from Oliver Ellsworth, also from Connecticut, immediately moved that states have equal suffrage in the Senate. Sherman stated that “Everything depended on this. The smaller States would never agree to the plan on any other principle than an equality of suffrage” in the Senate. The motion was defeated by one vote.
In response, William Paterson proposed what became known as the New Jersey Plan, presenting it to the Convention on June 15. The centerpiece of Paterson’s plan was a unicameral (one-house) legislature in which each state had a single vote. The Convention voted down Paterson’s proposal on June 19 and affirmed its commitment to a bicameral legislature on June 21.
The small-state delegates continued to protest proportional representation in the Senate with increasingly heated language, threatening to unravel the proceedings. When another vote on equal representation in the Senate resulted in a tie on July 2, however, the small shift opened the possibility for compromise.
The Convention appointed a “Grand Committee” to reach a final resolution on the question. The committee reported the original Sherman compromise proposal with the added provision, suggested by Benjamin Franklin of Pennsylvania, that revenue and spending bills would only originate in the House. Madison and others continued to press their case for proportional representation in the Senate and to oppose a House monopoly on revenue bills, while some small-state delegates were reluctant even to support proportional representation in the House. On July 16, delegates narrowly adopted the mixed representation plan giving states equal votes in the Senate.
The Senate of the United States shall be composed of two Senators from each State. [U.S. Constitution, Article I, section 3, clause 1]
Once delegates to the Constitutional Convention agreed on equal state representation in the Senate on July 16, they needed to determine how many senators would represent each state. Most delegates agreed that the Senate was to be a smaller body than the House, but there was disagreement as to how small. When John Dickinson of Delaware observed that he could accept a large Senate, James Madison of Virginia countered that “the use of the Senate is to consist in its proceeding with more coolness, with more system, & with more wisdom, than the popular branch,” a task better suited to a smaller body.
Delegates also agreed that one senator per state would not be enough, as absence of a single senator due to illness or death would leave states without representation and make it difficult for the Senate to achieve a quorum.
On July 23, Gouvernuer Morris of New York proposed that each state have three senators, but George Mason of Virginia and others worried that as new states entered the union this would lead to an overly large Senate.
The Convention approved two senators per state by unanimous vote.
At the same time, the delegates provided that senators would vote as individuals rather than having one vote per state, abandoning the practice used in Congress under the Articles of Confederation and in the Constitutional Convention. Luther Martin of Maryland objected, stating that voting as individuals departed “from the idea of the States being represented” in the Senate, but Maryland was the only state to oppose the motion.
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years. [U.S. Constitution, Article I, section 3, clause 1]
James Madison’s Virginia Plan, introduced to the Constitutional Convention on May 29, 1787, called for a bicameral national legislature. One house of the legislature, the House of Representatives, was to be directly elected by the people of each state. In Madison’s plan, the other house, the Senate, would be chosen by the House of Representatives from a group of individuals nominated by the state legislatures.
Many delegates to the Convention rejected the idea of representatives in the House choosing senators. They believed that this method of selection would compromise the independence of the Senate and hinder its ability to act as a check on the House. Pennsylvania’s James Wilson, who favored a national government that was more independent of the states, proposed the direct election of senators, but this form of popular election gained little support from the other delegates. Connecticut’s Roger Sherman warned against placing too much power in the hands of the people, whom “should have as little to do as may be about the Government. They lack information and are constantly liable to be misled.”
John Dickinson of Delaware suggested that the Senate be selected by state legislatures. “The combination of the state governments with the national government was as politic as it was unavoidable,” Dickinson argued. State selection, Sherman agreed, would give state governments an interest in the national government and “preserve harmony” by calming state fears about the dangers of a strong centralized government. The state legislatures, other delegates argued, would provide the necessary "filtration" to produce better senators—the elect of the elected. The advantage of this plan, they believed, was that all laws would be passed by a "dual constituency" composed of a body elected directly by the people (or at least the white males entitled to vote) and one chosen by the elected legislators of individual states.
On June 7, 1787, the delegates approved a motion for the election of senators by state legislatures. State legislatures continued to elect senators until adoption of the Seventeenth Amendment to the Constitution, which provided for popular election of senators, was adopted in 1913.
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years. [U.S. Constitution, Article I, section 3, clause 1]
The Virginia Plan, which set the initial terms of debate for the Constitutional Convention, did not specify a length of term for either house of Congress. It merely proposed that members of the Senate “hold their offices for a term sufficient to ensure their independency.”
In deciding term lengths, Convention delegates turned to the practices of state governments. Although the majority of states set one-year terms for both houses of their legislatures, five state constitutions established longer terms for upper house members. South Carolina’s senators served two-year terms, for example, while senators in Delaware served three-year terms with one-third of the senate’s nine members up for reelection each year. New York and Virginia implemented a similar system but with four-year terms instead of three. Only Maryland’s senate, whose members were not directly elected by the people, featured five-year terms.
The first proposal, from Virginians Edmund Randolph and James Madison, called for seven-year Senate terms. Citing Maryland’s system, Randolph and Madison argued that a long term would create stability in the Senate and provide an effective check on the more democratic House of Representatives. George Read of Delaware proposed an even longer term of nine years. Madison endorsed this long term, arguing it would contribute to the “wisdom and virtue” required for the body to counter “symptoms of a levelling spirit” among the people. A few delegates, such as New York’s Alexander Hamilton, suggested that senators be granted life tenure, as existed in England’s House of Lords. Hamilton contended this was necessary to protect senators against the "amazing violence and turbulence of the democratic spirit,” but few delegates supported this idea.
While some delegates proposed long terms to allow for an independent Senate, others worried that long terms would create too much independence. Charles Cotesworth Pinckney of South Carolina, for example, suggested that longer terms would lead senators to lose sight of their state’s interest. Connecticut’s Roger Sherman preferred four-year terms, arguing that frequent elections “preserve the good behavior of rulers.”
On June 26, with a 7 to 4 vote, the delegates compromised and adopted six-year terms for the Senate. In Federalist No. 62, James Madison defended six-year terms for senators, insisting that six-year terms would have a stabilizing effect on the new national government. Long terms, he argued, would reduce turnover in the legislature, allow senators to take responsibility for measures over time, and make senators largely independent of public opinion.
Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. [U.S. Constitution, Article I, section 3, clause 2]
Every two years, one-third of the Senate’s members are elected (or reelected). The Constitution’s framers based this three-class system on precedents established by state governments. Delaware’s senate and Pennsylvania’s unicameral council were divided into three classes on a one-year election rotation, while upper houses in Virginia and New York had four classes and yearly elections.
At the 1787 Constitutional Convention, delegates debated both the Senate class system and the issue of length of terms. On June 25, Massachusetts delegate Nathaniel Gorham suggested a four-year Senate term with one-fourth of the senators elected each year. Edmund Randolph of Virginia supported a staggered rotation in the Senate with seven-year terms. Hugh Williamson of North Carolina countered that six-year terms were more easily divisible into equal election cycles than seven-year terms. The following day, Gorham called for a six-year term, “one third of the members to go out every second year.” After further debate, delegates adopted the six-year, three-class Senate by a vote of 7 to 4.
Framers hoped that staggered elections would bring stability to the Senate, and in turn, to other branches of the new government. Class rotations would bring about gradual change, they argued, and prevent senators from permanently combining for “sinister purposes” while encouraging senators to deliberate measures over time.
At the start of the first session of Congress in 1789, senators were divided into the three classes by lot with same-state senators assigned to separate groups. The term for the first class expired in two years, the second in four years, and the third in six years. Subsequent elections to all classes were for a full six-year Senate term.
The rotation of senators, and the fact that two thirds of its members carry over from Congress to Congress, established the idea that the Senate is a “continuing body”—unlike the House of Representatives, whose entire membership faces election every two years. Unlike the House, the Senate does not adopt a new set of rules at the start of each Congress.
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. [U.S. Constitution, Article I, Section 6]
The Virginia Plan proposed that members of Congress “receive liberal stipends” as compensation for their public service, but not all delegates believed that senators ought to be paid for their service.
On June 26, 1787, Charles Pinckney of South Carolina proposed that senators should serve without compensation so as to ensure that only wealthy individuals would serve. Benjamin Franklin of Pennsylvania also argued against paying senators, warning that the public might suspect the delegates of having "carved out places" for themselves since they were likely candidates to become senators. When put to a vote, Pinckney’s proposal nearly passed, with five states in favor and six opposed. The delegates then decided by a vote of 10 to 1 to compensate members of Congress.
The Convention next turned to the question of who would pay members of Congress. Several delegates suggested that individual states should pay their senators. James Madison of Virginia objected, stating this would make senators too dependent on their states and compromise the Senate’s ability to serve national as well as state interests. It also would subvert the plan for a six-year term, he argued, as states could in effect recall senators by withholding their pay. The motion failed by a 5 to 6 vote and the delegates set the issue aside.
When delegates returned to the question of compensation in August, Maryland’s Luther Martin again raised the question of states compensating their senators, but in the end, delegates who hoped that the Senate would possess a degree of independence from the states prevailed. On August 14 the delegates voted 9 to 2 to pay senators out of the national treasury. They left it to the new Congress to decide how much to pay senators.
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. [U.S. Constitution, Article I, section 3, clause 3]
Delegates to the 1787 Constitutional Convention established requirements that individuals had to meet in order to become a member of the House and Senate. Influenced by British and state precedents, they set age, citizenship, and inhabitancy qualifications for senators but voted against proposed religion and property requirements.
Age: James Madison's Virginia Plan called for a minimum age requirement for service in both the House and Senate but left it to the delegates to define that requirement. The framers were familiar with England's requirement that members of Parliament be 21 or older, and they lived in states that had higher age requirements to serve in their upper chambers.
The delegates voted on June 12 to set a minimum age of 30 for the Senate and later added a minimum age of 25 for serving in the House. They maintained that members of the Senate ought to be older and more experienced and, perhaps, wiser. In The Federalist, No. 62, Madison justified the higher age requirement for senators. By its deliberative nature, he contended, the "senatorial trust" called for a "greater extent of information and stability of character" than would be needed in the more democratic House of Representatives.
Citizenship: Under English law, no person "born out of the kingdoms of England, Scotland, or Ireland" could be a member of either house of Parliament. While some delegates may have admired the strictness of this policy, none advocated a blanket ban on foreign-born legislators. Instead, they debated the length of time members of Congress should be citizens before taking office. The residency qualifications of the various states offered some guidelines. In New Hampshire, for example, state senators needed to be residents for at least seven years prior to election. In other states, upper house members fulfilled a five, three, or one-year residency requirement, while state representatives completed a residency period of one to three years.
The Virginia Plan made no mention of citizenship when Edmund Randolph introduced it to the convention in May. Two months later, when the Committee of Detail reported a draft of the Constitution, it included a four-year citizenship requirement for senators, one more than the proposed requirement for House members.
On August 8 the convention agreed to raise the House requirement to 7 years. The next day, Gouverneur Morris of Pennsylvania moved that the Senate's requirement be twice as long, 14 years. Charles Pinckney of South Carolina agreed with the longer requirement, arguing that "as the Senate is to have the power of making treaties & managing our foreign affairs, there is peculiar danger and impropriety in opening its door to those who have foreign attachments." Pierce Butler of South Carolina, himself born abroad, believed that naturalized citizens would need sufficient time to learn and appreciate American laws and customs before they could serve in government. James Wilson of Pennsylvania, another foreign-born delegate, argued that lengthy citizenship requirements "discouraged and mortified" everyone they excluded. He agreed with fellow Pennsylvanian Benjamin Franklin that a strict policy would hinder positive immigration and offend those Europeans who had supported the Revolutionary War.
Later that day, delegates voted against citizenship requirements of 14, 13, and 10 years before passing the nine-year provision, making the Senate requirement only two years longer than that for the House of Representatives. On August 13, Wilson moved to reduce the Senate qualification by two years, but delegates rejected his motion and confirmed the nine-year requirement by an 8 to 3 vote.
In Federalist, No. 62, James Madison defended the nine-year citizenship qualification as a compromise "between a total exclusion of adopted citizens" and an "indiscriminate and hasty admission of them."
Inhabitancy: Although England repealed Parliament's residency law in 1774, no delegates spoke against a residency requirement for members of Congress. The qualification first came under consideration on August 6, when the Committee of Detail reported its draft of the Constitution. Article 5, section 3 of that draft stated, "Every member of the Senate shall be . . . at the time of his election, a resident of the state from which he shall be chosen."
On August 8 Connecticut's Roger Sherman moved to strike the word "resident" from the language dealing with requirements for members of the House and insert in its place "inhabitant," a term he considered to be "less liable to misconstruction." Madison seconded the motion, noting that "resident" might exclude people occasionally absent on public or private business. Delegates agreed to the term "inhabitant" and voted against adding a time period to the requirement. The following day, they amended the Senate qualification to include the word "inhabitant" prior to passing the clause by unanimous consent.
The Vice President of the United States shall be President of the Senate, but shall have no Vote unless they be equally divided. [U.S. Constitution, Article I, section 3, clause 4]
Convention delegates first considered the Senate’s presiding officer after the Committee of Detail presented a draft of the Constitution on August 6. Article III, section 4 of that draft stated, “The Senate shall choose its own President.” Another article provided that the president of the Senate would exercise the powers of the president of the United States in case of his death, resignation, disability, or removal by impeachment. Both provisions passed without dissent.
Subsequent changes in how the president of the United States would be elected prompted delegates to revise the method of selecting the Senate’s presiding officer. The Committee of Detail had provided that Congress would elect the president, but concerns about the separation of powers led another committee of delegates, known as the Committee of Eleven, to propose the Electoral College system on September 4. The Committee of Eleven recommended that the Electoral College also elect a vice president, that the vice president be the “ex officio President of the Senate,” and that the vice president be empowered to cast a vote in the Senate in the case of a tie.
While this position was novel to many delegates, New York’s constitution contained a clear precedent: “the lieutenant-governor shall, by virtue of his office, be president of the senate, and, upon an equal division, have a casting voice in their decisions, but not vote on any other occasion.”
Some delegates objected to having the vice president preside over the Senate. On September 7, Elbridge Gerry of Massachusetts and George Mason of Virginia spoke against the proposed measure, believing that it conflicted with the goal of keeping the executive and legislative branches separate and distinct. Gerry objected that “We might as well put the President himself at the head of the Legislature.” Roger Sherman of Connecticut defended the clause. “If the vice-President were not to be President of the Senate,” Sherman stated, “he would be without employment.” Most delegates agreed with Sherman, and they passed the measure by an 8 to 2 vote.
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
At the start of each new Congress, in January of every odd-numbered year, one-third of senators take the oath of office to begin their new terms. While the oath-taking practice dates back to the First Congress in 1789, the current oath is a product of the 1860s, drafted during the Civil War.
The Constitution contains an oath of office for the president of the United States. For other officials, including members of Congress, that document specifies only that they "shall be bound by Oath or Affirmation to support this constitution." In 1789 the First Congress adopted a simple oath: "I do solemnly swear (or affirm) that I will support the Constitution of the United States."
At the outbreak of the Civil War in April of 1861, a time of uncertain and shifting loyalties, President Abraham Lincoln ordered all federal civilian employees within the executive branch to take an expanded oath. At the conclusion of its emergency session that summer, Congress adopted legislation requiring executive branch employees to take the expanded oath in support of the Union. In July 1862 Congress added a new section to the oath, which became known as the "Ironclad Test Oath." The Test Oath required civilian and military officials to swear or affirm that they had never aided or encouraged “persons engaged in armed hostility” against the United States. Government employees who swore falsely would be prosecuted for perjury and forever denied federal employment. Congress also revised the rest of the oath with language that closely resembles the modern oath.
Although Congress did not extend coverage of the Ironclad Test Oath to its own members, many took it voluntarily. At the urging of Senator Charles Sumner of Massachusetts, the Senate adopted a resolution in January 1864 to require all senators to take the Test Oath. The resolution also required senators to "subscribe" to the oath by signing a printed copy. This condition reflected a wartime practice in which military and civilian authorities required anyone wishing to do business with the federal government to sign a copy of the Test Oath. The current practice of newly sworn senators signing individual pages in an elegantly bound oath book dates from this period.
Following the Civil War, Congress permitted some former Confederates to take only the second section of the 1862 oath, and an 1868 statute prescribed this alternative oath for "any person who has participated in the late rebellion, and from whom all legal disabilities arising therefrom have been removed by act of Congress." Northerners complained of the law's unfair double standard that required loyal Unionists to take the Test Oath's harsh first section while permitting ex-Confederates to ignore it. In 1884, after more than a decade of such complaints, a new generation of lawmakers repealed the first section of the Test Oath, leaving intact today's affirmation of constitutional allegiance.
The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. [U.S. Constitution, Article 1, section 3, clause 5]
On August 6, 1787, the Constitutional Convention’s Committee of Detail, tasked with creating a full draft of the Constitution, added a clause allowing the Senate to choose its officers. The proposal did not elicit any debate. According to Virginia’s James Madison, numerous precedents made the measure “so obvious that it [was] wholly unnecessary to vindicate it.” Members of Parliament had been selecting clerks of the house and sergeants at arms for hundreds of years, and state legislatures appointed various administrative officers. The Senate modeled its own offices of the secretary and the doorkeeper (later sergeant at arms) after positions established in the Continental Congress.
The Committee of Style and Arrangement, appointed on September 8 to complete a final draft of the Constitution, added a provision that allowed the Senate to elect one of its members as the president pro tempore to preside in the absence of the vice president. The position of president pro tempore (meaning “president for a while”) originated in the state legislatures. New York, for example, specified in its constitution that whenever the lieutenant-governor “shall be unable to attend as president of the senate, the senators shall have power to elect one of their own members to the office of president of the senate, which he shall exercise [until the lieutenant governor resumes his position in the chamber].” On September 12 the Convention accepted the president pro tempore as the vice president’s temporary substitute to preside over the Senate.
The Senate shall have the sole Power to try all Impeachments . . . And no Person shall be convicted without the Concurrence of two thirds of the Members present. [U.S. Constitution, Article I, section 3, clause 6]
Early in the 1787 Constitutional Convention, most delegates agreed that the inclusion of an impeachment provision would help to hold national officers accountable for their actions. Based on the practice of the British Parliament and the state legislatures, the Constitution’s impeachment provision gave to senators the responsibility for trying impeached officials, including the president of the United States.
First submitted on May 29, James Madison’s Virginia Plan proposed a supreme tribunal to hear and determine cases including, among other concerns, the “impeachments of any National officers.” On June 13, the Convention amended the plan’s proposal to state that the president could be “removable on impeachment of malpractices or neglect of duty.” The revised measure did not specify the procedures for trying the national executive.
In June and July, the framers debated the merits of involving Congress in the impeachment process. Roger Sherman of Connecticut “contended that the National Legislature should have the power to remove the Executive at pleasure.” George Mason of Virginia objected to Sherman’s plan, claiming that the president would become the “creature of the Legislature.” Delaware’s John Dickinson countered with an unsuccessful motion to make the executive “removable by National Legislature at request of a majority of State Legislatures.”
On August 6 the Committee of Detail reported that the House of Representatives “shall have the sole power of impeachment” and the executive “shall be removed from his office by conviction in the supreme Court, of treason, bribery, or corruption.” Two weeks later, the committee added that “the judges of the supreme court be triable by the senate, on impeachment by the house of representatives.”
The constitutional plan then went for review to a Committee of Eleven, consisting of one member from every state represented at the convention. Presented to the full convention on September 4, the Committee’s report stated: “The Senate of the U.S. shall have power to try all impeachments [by the House of Representatives]; but no person shall be convicted without the concurrence of two thirds of the members present.” The delegates debated the clause on September 8. Arguing that the executive would become dependent on the legislature, Madison opposed Senate impeachment trials. He moved to strike out the words “by the Senate” after the word “conviction,” but the motion was rejected. Later that day, the delegates agreed to Pennsylvanian Gouverneur Morris’s addition, “and every member shall be on oath” before they passed the final measure by an 8 to 2 vote.
In The Federalist, No. 65, Alexander Hamilton of New York explained the Committee of Eleven’s rationale for placing impeachment trials in the Senate. In his view, no other institution would be sufficiently dignified or independent to handle the proceedings. Furthermore, the British Parliament and the practice of state legislatures provided similar models for legislative impeachments. In England, impeachments were instituted by the House of Commons and tried by the House of Lords. Penalties for conviction ranged from fines to jail, banishment, or death. State constitutions, relying on examples from colonial charters, limited both the punishment and the conditions for impeachment.
Madison, in The Federalist, No. 47, referred to the impeachment provisions in the New York, New Jersey, and Massachusetts state constitutions. In New York, members of the legislature and the judiciary served on a court of impeachment, while in New Jersey, select officers could be dismissed by the upper house on impeachment by the lower house. The clearest antecedent to the U.S. impeachment clause, however, was found in Massachusetts’ 1780 constitution, Section 2, Article VIII of which stated: “The senate shall be a court, with full authority to hear and determine all impeachments made by the house of representatives, against any officer or officers of the commonwealth, for misconduct and maladministration of their offices.”
[The president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . . [U.S. Constitution, Article II, section 2, clause 2]
Debated over the course of several weeks, the Constitution’s proposed nomination clause split the delegates into two factions—those who wanted the executive to have the sole power of appointment, and those who wanted the national legislature, and more specifically the Senate, to have that responsibility. The latter faction followed precedents established by the Articles of Confederation and most of the state constitutions. These documents granted the Congress under the Articles of Confederation and the state legislatures the power to make appointments, while the Massachusetts constitution provided an alternative model. For over one hundred years, Massachusetts had divided the appointment responsibilities between its governor, who made the nominations, and its legislative council, which confirmed the appointments.
Delegates in favor of a strong executive argued that Senate appointments would lead to government by a “cabal,” swayed by the interests of constituents. Delegates who feared the power of monarchies, however, wanted to remove the president entirely from the appointment process. Initially, the delegates granted the president the power to appoint the officers of the executive branch and, given that judges’ life-long terms would extend past the authority of any one president, allowed the Senate to appoint members of the judiciary. On September 4, the Committee of Eleven reported an amended appointment clause. Unanimously adopted on September 7 and based on the Massachusetts model, the clause provided that the president shall nominate and, with the advice and consent of the Senate, appoint the officers of the United States.
He shall have Powers, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . . . [U.S. Constitution, Article II, section 2, clause 2]
The delegates to the Constitutional Convention first considered the treaty-making power when the Committee of Detail submitted its draft Constitution on August 6. Article IX, section 1 stated: “The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court.” Several delegates opposed granting the Senate sole control over treaty-making. While some wanted the executive to have that responsibility, others advocated involving the entire legislature in the process. Small-state delegates, however, preferred the Committee of Detail’s treaty clause because it gave each state an equal say in the adoption or rejection of treaties.
As they debated the treaty-making clause, the delegates again turned to familiar precedents. In Great Britain treaties were negotiated by the king and, in certain cases, had to be approved by a majority vote in Parliament. The Continental Congress, which had no executive officer, dispatched agents to negotiate treaties, but the treaties went into effect only after two-thirds (nine out of thirteen) of the states gave their approval. This process was further complicated by the states’ ability to enter into their own treaties with foreign powers.
On September 4 the Committee of Eleven reported a revised proposal that appeased many of the delegates by sharing the treaty-making power between the president and the Senate: “The President by and with the advice and Consent of the Senate, shall have power to make Treaties.” The delegates unanimously approved the clause on September 7, but it was later amended to include: “But no treaty shall be made without the consent of two thirds of the members present.”
The Constitution’s treaty clause continued to stir debate as the states considered ratification. As one of the clause’s strongest proponents, New York’s Alexander Hamilton, in The Federalist No. 75, defended the treaty-making provisions as the “best digested and most unexceptionable parts” of the Constitution. “It must indeed be clear,” he wrote, “that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the separate possession of it by either of them.” He also justified placing this power in the Senate rather than the House: “The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust.”
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